Comer v. Scott: Update for 15 Aug

YOU ARE ALL aware that Christina Comer , who had been Director of Science at the Texas Education Agency (TEA), was fired from her job and has filed a suit against the TEA and Education Commissioner Robert Scott, alleging that she was fired because (in effect) she committed thoughtcrime — she forwarded an email announcing a talk by Dr. Barbara Forrest, a known critic of intelligent design creationism. See Comer v. Scott — Background Information.

It’s been a while since she filed her suit, but now, from The Texas Observer we learn: Latest in the TEA Monkey Trial. Excerpt:

The Texas Education Agency and Commissioner Robert Scott have answered the federal lawsuit filed against them by former science curriculum director Chris Comer. (Comer was forced out in December over an email she sent to science teachers announcing a talk by an evolution expert.) In her suit, Comer alleges that she was fired for violating an unconstitutional TEA policy of “neutrality” on evolution.

That’s incredibly sloppy journalism. The TEA and Scott didn’t “answer.” They filed this 31-page Motion to Dismiss (it’s a pdf file). It’s even labeled as such on the first page. An “answer” is a whole different thing.

The motion appears to be good legal work. That’s expected, as both defendants are being represented by the Texas Attorney General’s office. If you care about the nuts and bolts of such things then go ahead and read the motion; but it’s rather technical and probably not worth your time.

If the motion is denied, then the defendants will file an answer. We hope the Texas Observer will call that pleading what it is. (Hint: It will be labeled “Answer” on the first page.)

There is one particularly interesting part of the defendants’ motion, and we say that because it’s directed at the substance of Comer’s complaint rather than the technicalities. It starts on page 24:

C. The TEA “Policy” of Agency Neutrality on Curriculum Issues is Constitutional.

As explained in the BACKGROUND above, TEA’s posture of nonpartisanship in curriculum issues is a necessary and inherent component of its statutorily mandated relationship with the State Board of Education. The plaintiff refers to the “policy” as if it pertained only to the evolution-creationism controversy in science education. The specific facts she pleads do not support that characterization.

[…]

All that the plaintiff’s authorities hold with respect to “neutrality” is that, in the context of classroom instruction, a mandatory superficial neutrality can have the effect of promoting a religious agenda by implying that creationist or “intelligent design” concepts have as much scientific credibility as evolution. But in each of those cases, the public school context, coupled with a history of efforts by the same defendants to inject religion into the science curriculum, rendered a facially neutral requirement unconstitutional in its effect. Aguillard, 482 U.S. at 590, 594, 107 S.Ct. at 2581, 2583; Kitzmiller, 400 F. Supp.2d at 728, 746.

[…]

By contrast, the TEA “policy” at issue does not say anything to public school students about the scientific validity of evolution or creationism. The only message it conveys to the public is that TEA does not take sides on matters that are the province of the State Board of Education.

Outside of the public school context, state official neutrality is not only permissible under the Establishment Clause. It is required, as the plaintiff’s own authorities stress.

Once the court sorts out all the initial issues about standing, immunity, etc., and if the case isn’t settled or dismissed without appeal, we suspect that it will end up being decided on the constitutionality TEA’s “neutrality” issue (and not the nickel-and-dime issues as to whether Comer was given adequate notice, opportunity to respond, etc.). But it’s still early, and your Curmudgeon isn’t making any predictions at this stage.

Again we ask: Where’s Ben Stein when we need him? Oh, he’s only interested in the careers of creationists who can’t get faculty positions teaching science. Hey Ben, wake up! When the theocrats take over, do you really think you’re going to be safe?

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One response to “Comer v. Scott: Update for 15 Aug

  1. –“That’s incredibly sloppy journalism. The TEA and Scott didn’t “answer.” They filed this 31-page Motion to Dismiss (it’s a pdf file). It’s even labeled as such on the first page. An “answer” is a whole different thing.”–

    As Juliet said in Romeo and Juliet, what’s in a name? TEA’s response is an “answer” colloquially speaking if not legally speaking. And it is partly a motion for summary judgment because it discusses the merits of the case — e.g., the constitutionality of the “neutrality” policy — and not just the issue of standing to sue.

    –“we suspect that it will end up being decided on the constitutionality TEA’s “neutrality” issue . . . . But it’s still early, and your Curmudgeon isn’t making any predictions at this stage.”–

    I predict that the judge will rule that the policy is constitutional. It is not the job of the TEA to enforce, publicize, or interpret judicial rulings against the teaching of creationism in the public schools. There was not even any allegation that any of those rulings were being violated in the Texas public schools. And the “neutrality” policy here concerns issues other than creationism — some related issues are: (1) whether to keep the “strengths and weaknesses” language in the state standards; (2) whether to teach Intelligent Design or other scientific — or pseudoscientific — criticisms of evolution; (3) — whether to add evolution disclaimer stickers to the textbooks (in Texas, the state provides textbooks for the public schools); (4) — whether to state that evolution is central to biology (this is now a very controversial statement); (5) — the selection of state biology textbooks, including consideration of their evolution content; etc.. These questions are topics of upcoming public hearings and the TEA has the right to have a policy of neutrality on these questions and to expect TEA employees to abide by that policy. This is not rocket science.